Daniel G. Bird

April 16, 2024— In a case highlighted by Law360’s Petition Watch, Kellogg Hansen client Living Essentials has asked the Supreme Court to clarify what a private plaintiff must prove to win a “secondary line” price discrimination case under the Robinson-Patman Act.  At trial, Living Essentials persuaded both a jury and the court to reject claims that it had violated the Act by offering Costco lower prices to buy its popular energy shots, 5-hour ENERGY®, than it had offered to certain wholesalers.  The district court explained that the wholesalers could not show they competed with Costco for the same customers, as required by Volvo Trucks North America, Inc. v. Reeder-Simco GMC, Inc., 546 U.S. 164 (2006).  But a fractured panel of the Ninth Circuit, breaking from the decisions of other courts of appeals, held Volvo inapplicable.  The petition urges the Court to grant review because the decision “invites litigation that will punish the price competition that antitrust law aims to encourage.” Living Essentials, LLC and its parent company, Innovation Ventures, LLC, are represented by Kellogg Hansen attorneys David C. Frederick, Daniel G. Bird, Collin R. White, and Kyle C. Bailey. Read more in this report by Law360. ..

May 1, 2023— Twenty-seven Kellogg Hansen attorneys qualified for recognition on the 2022 Capital Pro Bono Honor Roll for contributing fifty hours or more of pro bono work to those who cannot afford legal counsel.  Nineteen Kellogg Hansen attorneys also qualified for the High Honor Roll for providing one hundred hours or more of pro bono service.  The District of Columbia Courts have recognized attorneys through the Capital Pro Bono Honor Roll since 2011.  The complete list of 2022 honorees can be found here. Kellogg Hansen 2022 Capital Pro Bono Honor Roll Scott K. Attaway* Daniel G. Bird* L. Vivian Dong Daniel V. Dorris Matthew N. Drecun Ryan M. Folio David C. Frederick* D. Chanslor Gallenstein* Dustin G. Graber Kimberly V. Hamlett* Minsuk Han* Ashle Holman* Geoffrey M. Klineberg* Jonathan I. Liebman Eric J. Maier* Samuel A. Martin* Ariela M. Migdal Bradley E. Oppenheimer* Gregory G. Rapawy* Catherine M. Redlingshafer Derek C. Reinbold* Caroline A. Schechinger* Daniel S. Severson* Andrew C. Shen* Julius P. Taranto* Alex P. Treiger* Matthew J. Wilkins*  * denotes High Honor Roll ..

May 1, 2021— Nineteen Kellogg Hansen attorneys qualified for recognition on the 2021 Capital Pro Bono Honor Roll for contributing fifty hours or more of pro bono work to those who cannot afford legal counsel.  Twelve Kellogg Hansen attorneys also qualified for the High Honor Roll for providing one hundred hours or more of pro bono service.  The District of Columbia Courts have recognized attorneys through the Capital Pro Bono Honor Roll since 2011.  The complete list of 2022 honorees can be found here. Kellogg Hansen 2021 Capital Pro Bono Honor Roll Scott K. Attaway Alejandra Ávila* Daniel G. Bird* Katherine C. Cooper* Matthew N. Drecun* Linda A. Elliott* Kimberly V. Hamlett* Minsuk Han* Vetan Kapoor Geoffrey M. Klineberg* Ariela M. Migdal Aaseesh P. Polavarapu* Catherine M. Redlingshafer Derek C. Reinbold Christopher M. Sarma Thomas G. Schultz* Julius P. Taranto* Jayme L. Weber Matthew J. Wilkins* ..

Settlement agreement includes injunctive relief that will ensure Sutter competes on price and quality. San Francisco, Calif. | August 27, 2021— Today the Superior Court of California County of San Francisco approved the settlement resolving the antitrust class action that alleged that the Sutter Health hospital system leveraged its market power to engage in anticompetitive conduct, insulate itself from competition, and charge inflated prices. The case settled in 2019 when Kellogg Hansen partner Daniel Bird was minutes from giving the opening statement.  It has been heralded as a landmark case in the effort to take on inflated healthcare prices.  In reporting on the settlement, The New York Times described the lawsuit as \"a fresh legal attack on health systems accused of using their size to thwart competition\" that has been \"highly anticipated by both hospitals and health insurers.\" (The New York Times, \"Sutter Health to Pay $575 Million to Settle Antitrust Lawsuit,\" December 20, 2019.)  “This settlement shows employers and unions have the ability to level the playing field and stop the anticompetitive practices of dominant hospital systems that are driving up the cost of healthcare and lowering wages for millions of employees across the country,” Mr. Bird said following final approval of the settlement.  “We are incredibly proud of the results and thankful to the Court for its role in ensuring a fair and just process in this monumental case.” Kellogg Hansen was joined in the case by counsel from the California Attorney General’s Office, as well as co-counsel Pillsbury & Coleman, LLP; Farella Braun + Martel LLP; Cohen Milstein Sellers & Toll PLLC; and McCracken, Stemerman & Holsberry, LLP. Background on the Settlement The settlement agreement requires Sutter to pay $575 million to class members and to implement specific changes to its practices for at least ten years under the supervision of a court-appointed monitor.  The settlement agreement has eight key features regarding Sutter’s conduct: Prevents Sutter from unreasonably restricting the ability of insurers to create narrow or tiered networks or otherwise to incentivize patients to choose non-Sutter providers.  Prevents Sutter from using “must have” providers to require insurers to include unwanted Sutter providers in their networks, and from conditioning the participation of “must have” providers “on the tier in which the Insurer places them.”  Limits Sutter’s out-of-network rates for out-of-network trauma care, for out-of-network emergency-room care, for charges for Sutter physicians providing emergency-room non-trauma care, and for certain other charges.   Allows insurers to provide self-insured payers with pricing terms and claims data, and allows enrollees to have access to pricing, quality, and/or cost information concerning Sutter providers.  Preserves Sutter’s ability to engage in discounting and generally allows Sutter to offer lower prices for bundles of providers as long as a standalone price is also offered separately for those providers subject to certain exceptions. At the same time, it also provides procedural safeguards to ensure that Sutter’s use of bundled pricing does not prevent health plans from excluding certain Sutter providers from their networks. Limits Sutter’s conduct with respect to insurers’ ability to offer Centers of Excellence.  Those limitations preserve health plans’ ability to exclude Sutter providers from Centers of Excellence programs and to remove Sutter providers that fail to meet pre-disclosed criteria.  Prevents Sutter from enforcing “provisions in prior, existing, or future contracts with Insurers that violate or are inconsistent with the terms of [the settlement] or promulgate in future contracts terms that violate or are inconsistent with the terms of [the settlement].”  Installs a court-appointed monitor, who will ensure compliance with the settlement.  Case Caption:  UFCW & Employers Benefit Trust v. Sutter Health, No. CGC 14-538451 (Cal. Super. Ct.). ..

May 1, 2021— Kellogg Hansen attorneys qualified for recognition on the 2020 Capital Pro Bono Honor Roll for contributing fifty hours or more of pro bono work to those who cannot afford legal counsel.  Nine Kellogg Hansen attorneys also qualified for the High Honor Roll for providing one hundred hours or more of pro bono service.  The District of Columbia Courts have recognized attorneys through the Capital Pro Bono Honor Roll since 2011.  The complete list of 2022 honorees can be found here. Kellogg Hansen 2020 Capital Pro Bono Honor Roll Scott Attaway Daniel Bird Christine Bonomo* Matthew Drecun* Linda Elliott* Kenneth Fetterman Daniel Guarnera* Michael Guzman Julia Haines Jacob Hartman* Michael Kellogg Gerald Kerska Geoffrey Klineberg* Grace Knofczynski Sean Nadel* Bradley Oppenheimer* Ana Paul Eliana Pfeffer Gregory Rapawy Thomas Samuels* Christopher Sarma Thomas Schultz* Julius Taranto Jayme Weber Joseph Wenner* *denotes High Honor roll ..

$575 million settlement agreement includes injunctive relief that will ensure Sutter competes on price and quality. San Francisco, Calif. | December 20, 2019— Kellogg Hansen is seeking preliminary approval of a landmark class-action settlement reached with Sutter Health, the largest health care system in Northern California.  The $575 million settlement resolves claims brought by UFCW & Employers Benefit Trust (UEBT) on behalf of a certified class of direct purchasers of hospital services, as well as the Attorney General of California.  The agreement also provides injunctive relief, under the supervision of a court-appointed monitor, designed to limit Sutter’s charges for out-of-network services and to prevent Sutter from leveraging its market power in contract negotiations regarding provider networks. In a statement about the settlement, UEBT Board Chair Jacques Loveall said:  “From the outset, our goal has been to not only achieve justice for the members of the class, but to also put an end to the anticompetitive behavior that has allowed Sutter to charge inflated prices.  Today, we are asking the Court to approve a settlement that delivers on both of these goals.”  UEBT’s full statement is available here. The parties reached the settlement on the eve of trial.  Daniel Bird led the Kellogg Hansen trial team, which included Kenneth Fetterman, Linda Elliott, Jacob Hartman, and Albert Pak.  Kellogg Hansen is joined by co-counsel Pillsbury & Coleman, LLP; Farella Braun + Martel LLP; Cohen Milstein Sellers & Toll PLLC; and McCracken, Stemerman & Holsberry, LLP. Case caption: UFCW & Employers Benefit Trust, on behalf of itself and all others similarly situated, v. Sutter Health, et al., Case No. CGC-14-538451, pending in the San Francisco Superior Court. For media inquiries, please contact: UEBTMedia@msh.law ..